Focusing on Children a Bad Move For Anti-Equality Lawyers

Jeffrey Toobin has a short profile of Austin Nimocks, an attorney with the Alliance Defending Freedom who has been representing some states defending their bans on same-sex marriage and filing briefs in other cases. Toobin points out that he’s making a rather glaring strategic mistake:

The heart of Nimocks’s argument comes down to a single word: children. Over and over again in his sixty-page brief, he asserts that the government has a legitimate interest in favoring traditional marriage because only a man and a woman can produce children. “Marriage laws have been, and continue to be, about the pragmatic business of serving society’s child-centered purposes, like connecting children to their mother and father, and avoiding the negative outcomes often experienced by children raised outside a stable family unit led by their biological parents,” he writes. He attempts to elide the obvious response—that not all opposite-sex couples want or can have children—by saying that Virginia can presume that they will. The purpose of limiting marriage to men and women “is not to ensure that all marital unions produce children. Instead, it is to channel the presumptive procreative potential of man-woman relationships into enduring marital unions so that if any children are born, they are more likely to be raised in stable family units by both their mothers and fathers.” This, then, is Nimocks’s best response to the argument (raised by Justice Elena Kagan at the oral arguments) that marriage is about more than just having children, because lots of married people can’t or don’t have them.

There is a potentially fatal flaw in Nimocks’s child-centered argument. At the oral arguments of the Windsor case, and in the Court’s opinion, one of the Justices also seemed especially interested in children. It was Justice Kennedy, the indispensable swing vote on issues of gay rights. “There are some forty-thousand children in California that live with same-sex parents, and they want their parents to have full recognition and full status,” Kennedy said during the arguments related to Windsor’s companion case, on California’s Proposition 8. “The voice of those children is important in this case, don’t you think?” In his opinion in Windsor, Kennedy wrote that the Defense of Marriage Act “humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” The laws that Nimocks is defending operate in much the same way—which means that his losing streak may not end when he reaches the Supreme Court.

Indeed, the most fascinating aspect of Kennedy’s ruling in Windsor was how much he focused on the protection for children that same-sex marriage provides. He notes that the Defense of Marriage Act:

humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…

DOMA also brings financial harm to children of samesex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.

This strategy is going to backfire. And that’s a good thing.

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  • noastronomer

    Are there any *good* moves for anti-equality lawyers? Perhaps the only winning move is not to play?

    Mike.

  • colnago80

    He attempts to elide the obvious response—that not all opposite-sex couples want or can have children—by saying that Virginia can presume that they will. The purpose of limiting marriage to men and women “is not to ensure that all marital unions produce children. Instead, it is to channel the presumptive procreative potential of man-woman relationships into enduring marital unions so that if any children are born, they are more likely to be raised in stable family units by both their mothers and fathers.”

    By this argument then, marriages between an infertile man and a woman or between a man and a post menopausal woman should also be prohibited as they can’t produce children by natural means either. There is no possibility of any children being naturally conceived and thence born in such marriages.

  • gshelley

    Do any of the people making these arguments ever offer evidence to support them? If the state interest is that marriage can support children, are there benefits that only apply once there are children (and don’t apply to non married couples). They apparently think they can dismiss the fact that the state has no interest in whether the couple is capable or interested in having children, or if they have other factors that correlate with poor outcomes for children, but surely there is something?

  • raven

    This is gibberish!!!

    interest in favoring traditional marriage because only a man and a woman can produce children.

    False. A nonsequitur. An idiot statement.

    A woman and turkey baster like devices can produce children. It happens a lot AKA artificial insemination.

    But that isn’t his faulty point. Gay people have children all the time. Women need a sperm donor of one sort or another, often two legged. Men frequently give marriage a try due to social pressures and being in the closet. In fact, the Mormon church pushes this strongly that gay men should get…married to a woman. They will even help this happen.

    “Marriage laws have been, and continue to be, about the pragmatic business of serving society’s child-centered purposes, like connecting children to their mother and father, …

    It’s not the only purpose of marriage and marriage laws. It’s just as much about legal rights and property. Many marriages are childless, especially later than first marriages among old people. The divorce rate is 50%.

    and avoiding the negative outcomes often experienced by children raised outside a stable family unit led by their biological parents,” he writes.

    Which marriage often fails at. 40% of children are born to single mothers. And we need those kids desperately. The US birth rate is below replacement. Without those single mothers, our population would be dropping like a rock.

    A huge number of children live without two biological parents anyway. People divorce all the time and remarry and end up with blended families. Or divorce and stay single.

    No wonder these fundie xian idiots keep losing!!! These are very obviously nonreasoning nonarguments.

  • scienceavenger

    The purpose of limiting marriage to men and women “is not to ensure that all marital unions produce children. Instead, it is to channel the presumptive procreative potential of man-woman relationships into enduring marital unions so that if any children are born, they are more likely to be raised in stable family units by both their mothers and fathers.”

    That makes no sense at all. If your agenda is to channel heterosexual procreative potential into marriage, then that would lead you to want more heterosexual couples to marry, not fewer gays to do so. Its as if they think marriage is a zero sum game, where gays getting married somehow keeps heterosexuals from doing so. Are they that concerned about lines at the JP? Have marriage licenses become limited resources? Sorry Heterosexual Couple X, no getting married for you, the gays took all the licenses.

    I wish just once one of the judges would demand they go through their logic step by step, because “logic” is too elevated a term.

  • eric

    The purpose of limiting marriage to men and women…is to channel the presumptive procreative potential of man-woman relationships into enduring marital unions so that if any children are born, they are more likely to be raised in stable family units by both their mothers and fathers

    That is, like 99% of anti-SSM arguments, an argument for recognizing heterosexual marriage, not an argument for forbidding homosexual ones. Incentivising stable man-woman relationships does not require disincentivising stable man-man and woman-woman relationships.

    But, I suspect that noastronomer is right. Nimrocks has been dealt a crappy legal hand. He’s trying to play it the best way he can, but that way still isn’t very good because the hand is just that crappy.

  • hunter

    Marriage has never been about children. That’s pure Catholic doctrine, and I wish someone would call them on it.

    And it occurs to me that when a couple stays married “for the children,” that marriage is dead.

  • D. C. Sessions

    Are there any *good* moves for anti-equality lawyers? Perhaps the only winning move is not to play?

    You’re assuming that the objective is to actually keep the law from recognizing SSM. That’s not the real game, though. The real game, just as with abortion, is keeping the Base stirred up and voting, sending money, and (perhaps most importantly of all) ignoring how totally they’re being shafted by the Powers That Be.

    Losing in court is, up to a point, a winning move. It took the Religious Right more than five years to figure out how to play Roe v Wade and they’ve been milking it ever since. In some ways one of the worst things that could happen to them would be a Supreme Court reversal of Roe v Wade.

    They’re losing this one in the long term, and they know it. Unlike Roe v Wade, they’re not going to stuff this particular genie back in the bottle. The best they can do is milk it while they can, and keeping the issue in the news with court cases is necessary for that. And remember, losing gets the Base stirred up like almost nothing else.

  • cedrus

    @colnago: Indeed, as I understand it, infertile people have *greater* marriage rights in many states, as laws against marrying blood relatives often have exemptions for the infertile.

    The state has plenty of rational interest in promoting stable relationships via marriage benefits, even among those who can’t or won’t have children. You still get the improved economic stability, improved health outcomes, etc among the married, so AFAIK there’s never been an attempt to limit heterosexual marriage this way.

    But of course, if they presented their actual argument, it would take five minutes (to print their day-glo “GOD HATES F**S” sign onto legal letterhead). That’s no way to rack up billable hours, so they went with this.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    gshelley “Do any of the people making these arguments ever offer evidence to support them?”

    Yes. They enter the book “See Gay” as evidence (“See Gay. See Gay, ick. Ick, Gay, ick!”).

  • eric

    @8 – I think you’re somewhat wrong. I think you’re misinterpreting a “sour grapes” self-delusion move (by conservatives) as a sincere belief. Of course they would love to stop SSM. They would likely love to go much further and criminalize gay sex if they could do that. But they can’t, so they proclaim that was never their intent and it’s all about principle. The cynical conservatives use the opportunity to collect funds from the base. This fox is profiting from walking away from the grapes. But despite that, he did want them, and he did play a bit of a mind game on himself, to convince himself he never really wanted them in the first place.

  • raven

    This fox is profiting from walking away from the grapes.

    This fox doesn’t need grapes.

    He is getting US currency instead, a lot more useful than a bunch of grapes.

    It’s been noted many times that much of the money the right wing and fundie xians donate to their leaders gets vacuumed up by scammers. There is a huge industry and many mega-million fortunes build around this fact.

    I don’t have a problem with this at all. Makers of sports cars, mansions, jewelers, and purveyors of fine wines and drugs need to eat to.

  • Michael Heath

    The reason conservative Christians continue to use bad arguments promoting the continued discrimination of gay people, their families, and the abuse of gay children, is that there are no observed good arguments.

  • gshelley

    So, the argument is basically

    “marriage should be for opposite sex couples only as we have arbitrarily decided that it is best that children are raised with a mother and father, but we don’t actually care if the couple is willing or capable of having children, it makes no difference to the marriage if they have children and any benefits that come from having children are the same for unmarried parents, nor do we care about any of the other measures, such as race, wealth, education and even smoking that have actually been demonstrated to have an effect on outcomes”

    I can’t imagine why it isn’t working

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Michael Heath “The reason conservative Christians continue to use bad arguments promoting the continued discrimination of gay people, their families, and the abuse of gay children, is that there are no observed good arguments.”

    Damn you, Schrödinger!

  • Vicki, duly vaccinated tool of the feminist conspiracy

    It kinda sorta makes sense if you start from the idea that many of these people don’t believe in heterosexuality. They approve of it, all right, but they act as though they consider it as rare as a purple unicorn. If there are two kinds of people, gay and bisexual-but-preferring-their-own-gender, then same-sex marriage would undermine heterosexual marriages.

    The last decade or so has proven that this is not true: there really are lots of people who will stay in heterosexual marriages even when same-sex marriage is an option. Some of us are bisexual, but I would guess that a lot of people in mixed-sex marriages are heterosexual.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Vicki, duly vaccinated tool of the feminist conspiracy “It kinda sorta makes sense if you start from the idea that many of these people don’t believe in heterosexuality. They approve of it, all right, but they act as though they consider it as rare as a purple unicorn.”

    “Purple unicorn”? Why would they consider it as rare as what I can only conclude is a gay bar?

  • dingojack

    So if the state has an interest in creating ways to “channel the presumptive procreative potential of man-woman relationships”, does that mean the they’re going to set up tax-funded dating agencies to reduce the number of singles too? *

    @@

    Dingo

    ——–

    * we wouldn’t want all that ‘presumptive fertility potential’ escaping and running amok now, would we?